[Redacted], Clay M., 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Jan 5, 2022

Appeal No. 2021003895 (E.E.O.C. Jan. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clay M.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2021003895 Agency No. HUD-00056-2021 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 23, 2021, dismissing his complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. BACKGROUND During the period at issue, Complainant worked as Branch Chief/Manager for the Asset Management Division at the Agency’s Office of Multifamily Housing in Atlanta, Georgia. On June 1, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of genetic information (unspecified), race (Caucasian), sex (gay male), color (white), age (62), and in reprisal for EEO-protected activity (EEOC Appeal No. 2021004194; Agency No. HUD-00074-2020; EEOC No. 410-2021-00101X) when, on April 28, 2021, Complainant learned that his former Agency supervisor provided false information to a Defense Counterintelligence and Security Agency (DCSA) investigator during the background investigation for Complainant’s appointment with the Department of Veterans Affairs. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 2021003895 On June 23, 2021, the Agency dismissed the complaint for failure to state a claim under 29 C.F.R. §1614.107(a)(1). The Agency reasoned that despite Complainant’s former supervisor providing negative information to the DCSA investigator, Complainant was granted the requisite clearance for appointment with to the position with Department of Veterans Affairs. The Agency noted that Complainant resigned from the Agency in order to assume the Department of Veterans Affairs position on July 5, 2020. The instant appeal followed. Complainant contends that his former Agency supervisor gave false statements to the DSCA investigator. Specifically, Complainant alleges that the former supervisor’s statements were retaliatory because Complainant had filed a prior EEO complaint against the Agency alleging discriminatory non-selection. Complainant states that the former supervisor lied to the DSCA investigator by stating that that Complainant was not qualified for promotion, whereas the Agency had deemed Complainant among the best qualified for the position. Complainant further states that the Agency’s negative comments to the DSCA investigator were incongruous with the outstanding performance appraisals that he had received from the Agency. Complainant learned of the negative comments through a FOIA request when he had resigned from the Agency to accept the position with the Department of Veterans Affairs. Complainant asserts in that the Agency’s purportedly false information remains in his permanent government security file. Complainant asserted that the Agency disparaged his professional reputation in the Department of Veterans Affairs and with other possible employers. Complainant states that he was irreparably harmed in that the Agency’s inaccurately derogatory comments would irreparably harm his future earnings and promotion prospects. ANALYSIS AND FINDINGS Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Here, the former supervisor’s comments did not prevent Complainant’s selection at the Department of Veterans Affairs. Moreover, although the former supervisor may have gratuitously volunteered negative information, the DCSA’s security background investigation resulted in a favorable outcome for Complainant. It is undisputed that Complainant was granted a Public Trust Security Clearance despite any false statements that the Agency provided to the DCSA investigator. Given these circumstances, we find that the Agency failed to harm Complainant’s employment opportunity at the Department of Veterans Affairs. Finally, we find that Complainant’s concerns regarding possible future detriments are simply too speculative to constitute actionable employment harm at present. 3 2021003895 CONCLUSION Therefore, the Agency's final decision dismissing the formal complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 4 2021003895 Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations January 5, 2022 Date